The Anderson intelligencer. [volume] (Anderson Court House, S.C.) 1860-1914, 1887-05-12
Court as al present organized, is its ten.
dency to legislate.

Court as al present organized, is its ten.
dency to legislate.
In the married woman case, they hold
the words, "as to her separate property"
to be equivalent to "for the benefit other
separate property" There is no var.
rant, ei,helsir Law nor in the use of the
English language, for such an assump-
ton. There is not, and never has been,
any writer since creation, SO far as
ne have read or heard, except the
majority of,the Supreme Court Of South
Carolina, who has made the words 'as
TO" mean ''for the benefit Of" The
inconsistency Of fIthe Court may be illus.
trated by the course of adjudicatnre on
the jurisdiction of the Probate Court to
sell land for prohibition, and the adjudi.
cature on The rights of married women.
To begin with, the Constitution estab.
fishes Probate Court, and prescribes
certain duties. The Legislature gave the
Court these duties, and also the right to
partition land. The Supreme Court
decided that the Consultation, having
expressed certain Jurisdiction for this
|. Court, wa,! conclusive, and could, not be
enlarged ty the Legislature, aud hence
|, in Davenport ys. Caldwell they decided
that the Probate Judge had no jurisdic,
ton; in partition suits. :as 7sYg.s |
The Constitution enlargest the powers
of married women, and. ssys what they
may do. It provides that they may
ALLEVIATE, devise and bequeath their sepa-
rate property. as if unmarried. The
Legislature enlargea this grant, and says
she may; contract and be contracted with,
the same as if unmarried. The Supreme
Court holds, in this instance, that the
Legislature could enlarge the Constitu-
ton, and makes valid these contracts. /
a large amount of land had been par
titioned by the, Probate Courts, and
another case went back to the Supreme
Court, and: this time they held that,
although the Constitution excluded the
Probate Judge from selling land for par.
|. tition, that it was common error over
the State, and that on the ground of this
common error such sales were valid and
binding. In other words, they placed
the ignorance Of the people above the
+ Constitution, and for the first time that
we know Of in, the history Of jurispru.
dence they made Ignorance Of Law 9
higher law than Constitutional provisr
ion.
The Legislature amended the Law as to
married women by inserting the words
aas to her separate property. intending
to limit her power to contract, 80 as to
require her contracts to be made as to
her separate property, which would not
give q general liability on her part, but
only a liability as to the property as TO
which. the contract was made applicable.
These words have been construed in New
York ID able judicial opinions, and on
the strength Of The belief that mortgage
from married woman was perfectly safe
and valid, thousands Of dollars have been
loaned ii this State. The former decis.
ions Of the Supreme Court have contrib.
uted to these errors, and Jet, in this
instance, they hold the contracts and
mortgages 70 be void. They DO not protect
the creditors here on the ground Of com.
mon error, although that common error
Was as to q Statute, and not as to . Con.
stitntion, as il the other case. We did
not, however, intend to make this article
criticism upon the Supreme Court, but
merely mention these things 70 show the
necessity for change. What that
change Is to be is receiving more than q
passing consideration at this time, and
I'VE would like TO suggest TO the profession
the reorganization Of our judiciary in
such way as to combine the features,
with slight notifications, Of the Old
Court Of Errors of South Carolina and
the Supreme Court Of the United States.
To begin with, We would have the su.
prelne Court consist Of a Chief Justice
and three Judges, so 50 That It would be
necessary TO have three Judges concur.
ring TO render an opinion. Where they
divided equally lei the case be cent up
to the Court Of Errors, which should con-
Ssist OF all the Judges in, the State, and
meet, say once in two years, to hear these
cases, and any others which The Supreme
Court might deem necessary 70 Be deter
mined BY this highest Court. One trou.
BE NTH our Supreme Court, as now
organized, il the lack Of practice expert.
ence by the Court. If these. Judges went
among the people around the Circuits
they would get many valuable ideas Of
practice, and much practical information
as to the administration Of law that they
do not now have, and the effect would, we
believe, tend to practicable the adjudica.
ture in, this State, which is now too often
forced and theoretical. We would
accomplish this By requiring all of the
Judges, except the Chief Juutics, 10 take
their turns on Circuit. We would make
up the Supreme Court BY taking for one
year at a time, in regular alienation,
three ofthe Circuit Judges. This would
elevate the Circuit bench, and make the
Legislature careful always to select the
ablest and best men for Circuit Judges,
and would combine theory and practice
in such way as to improve both the Cir.
cult and the Supreme Courts. It would
give us more careful aud consistent adju.
dicatures, and tend 10 make our Supreme
Court reports what they we're before the
war-a systematic, harmonious code of
laws, ably expounded, and consistently
adhered 10. This would give US certainty
: